This appeal arises under the Texas Workers’ Compensation Act of 1989 (1989 Act), TEX. REV. CIV. STAT. ANN. arts. 1.01 through 11.10 (Vernon Supp 1993). On April 8, 1993, a contested case hearing was held in (city), Texas, with (hearing officer) presiding. She determined that appellant (claimant) was not injured in the course of employment from moving dirt on which fuel had been spilled. Claimant asserts that the evidence was sufficient to support a decision in his favor, that it is common knowledge that exposure to hydrocarbons can cause a rash, and that medical evidence indicates claimant’s injury resulted from the work. Respondent (carrier) replied that the evidence was sufficient to uphold the decision.
DECISION
Finding that the decision and order are sufficiently supported by the evidence, we affirm.
Claimant had begun work for (employer) on November 20, 1992, a Friday. On Monday, (date of injury) claimant, along with another worker, began cleaning a fuel spill at CR that occurred on Friday, November 20th. Claimant testified that the area to be cleaned was muddy on (date of injury)and that in order to dig the contaminated dirt out from under pipes he had to lie in the mud. He further testified that he was lying down for six hours on Monday while removing dirt. On Tuesday claimant said he returned to the same site and again had to lie down on the ground to remove dirt. He was dressed in a jumpsuit, not waterproof, over his regular work clothes. He said the jumpsuit was wet on both Monday and Tuesday. On Wednesday, claimant said he returned to the same site to finish the job and only had to lie down to dig “an hour, two hours something like that.” He said that on each day he had headaches and had a rash, but said nothing to anybody. He added that he was the only worker who lay on the ground to get the dirt out from under pipes and identified pictures in evidence as showing the area that he worked on for three days.
As a witness for the carrier, (MG) testified that he was the general foreman for employer. MG characterized the spill as a kerosene spill that occurred Friday afternoon. By Monday, MG said the site was stained, but dry; kerosene evaporates. MG said that claimant was dressed in coveralls and work boots. MG named two other workers, one of whom worked with claimant on each of the days the dirt was removed. MG said he had worked at kerosene spills before and this one measured approximately four feet by 10 feet. The refinery’s environmental department determined that no protective gear was needed. MG said soil was initially removed to a depth of six inches and tested and then another six inches was removed for a total depth of approximately 12 inches. MG observed the crew digging the soil out with shovels.
The carrier also examined (RR), who was the foreman over this job and some others in progress. RR said that the cleaning of the site in question took two days, not three, and was over at 1:30 pm on Tuesday, November 24th. RR was at the site at least some period of time during every hour of each day. RR added that claimant was wearing coveralls, boots, and gloves that RR personally gave him. RR never saw claimant lie on the ground. RR started the clean-up by turning the first shovel to show the two men how deep to dig–it was dry, but stained. RR said there was no reason for anyone to lie down to dig under any pipe; it would not be the easiest way to do the work. In addition, if RR found anyone lying down, RR would tell him to get up.
Claimant went to see a doctor in Mexico and then went to an emergency room on December 18, 1992. His urine was tested for lead and none was detected. A CT scan was performed in January 1993 which was normal. Claimant was seen in the Texas Tech Health Science Center emergency medical clinic on December 28th, January 4th, and January 11, 1993. Each time his headaches were referred to as of “unknown” etiology or “?” etiology. On December 28th, his rash was said to have “resolved” and was not referred to in the subsequent visits. On January 22, 1993, claimant was seen by (Dr. H) who stated:
Pt’s S/S (signs and symptoms) are compatible with hazardous material exposure. Pt. relates no protective measures taken at site. Reserve conclusion till I know what materials were involved in this spill clean-up.
There is no additional testing data, or any other medical entry, in the record of the hearing between this January 22nd entry and a letter from Dr. H dated April 1, 1993. In the April letter, Dr. H begins by describing his finding as “preliminary;” he says his “feeling” is that claimant was injured by exposure at work. He uses the word “spill” twice but never indicates in this letter what the spill consisted of. (See Dr. H’s note in his January 22nd entry questioning what was spilled.)
Claimant’s medical records also contain a letter from (Dr. B), dated April 7, 1993. That letter refers to claimant’s history of exposure on November 23, 1992, and says that she agrees with Dr. H that claimant’s signs and symptoms are “consistent” with toxic exposure.
The hearing officer is the sole judge of the weight and credibility of the evidence. See Article 8308-6.34(e) of the 1989 Act. She could question claimant’s assertions about lying on the ground to shovel under pipes for six hours one day, an unspecified time on the next day, and one to two hours on the third day when compared to the size of the area dug, the testimony of RR that he never saw claimant lying down when he viewed the site on an hourly basis, and the absence of any testimony or statement from other members of the crew that claimant worked in that manner. Similarly, she could question claimant’s assertion that the site was muddy and his coveralls were wet in view of the spill happening at least 60 hours earlier on the preceding Friday, the statement of RR that he turned the first shovel and it was dry, and the absence of any testimony or statement from other members of the crew that claimant was wet.
While deductions of a medical expert are not binding on the trier of fact even when not contradicted (see Gregory v. T.E.I.A., 530 S.W.2d 105 (Tex. 1975)), the opinion before the hearing officer from Dr. H was characterized as “preliminary,” indicating that more data could be considered and therefore that the opinion was not final or certain. In addition, Dr. B’s letter says she agrees with Dr. H, but does not say that claimant’s exposure at the kerosene spill site caused his symptoms–only that his problems are consistent with toxic substance exposure. The records contain no evidence of test results showing toxic exposure. Without medical evidence establishing causation, the hearing officer did not find that the lay evidence proved a sequence of events, objective symptoms of pain and discomfort shown to be treated timely, producing a logical, traceable connection between the allegation and the result. See Daylin Inc. v. Juarez, 766 S.W.2 347 (Tex. App.-El Paso 1989, writ denied). This was a question of fact for the hearing officer to decide.
We note that the carrier sought a continuance in this hearing and it was not given. The record does not indicate any attempt by claimant to continue the hearing to develop the evidence further.
Considering the period of time of exposure, the type of exposure, the conflicting evidence as to what claimant did and how wet or dry the soil was, the lack of test results to show exposure, and the other medical evidence that did not show causation, the decision and order of the hearing officer is supported by sufficient evidence and is affirmed.
Joe Sebesta – Appeals Judge
CONCUR:
Lynda H. Nesenholtz – Appeals Judge
Thomas A. Knapp – Appeals Judge